All Hat, No Cattle | Elder Financial Abuse Enforcement Issues

All Hat, No Cattle | Elder Financial Abuse Enforcement Issues

Proclamation is not performance. It is not even the process toward performance.

Empty proclamations are counterfeit. Texans sometimes put it a different way: “All hat, no cattle.” It’s a reference to a person or a group who are all talk with no action, power, or substance behind their words.

A proclamation or pronouncement is one thing. But it is in process and performance that commitment, however proclaimed, is hashed out in the nitty-gritty reality of everyday life. The reality in 2020 is that much of institutional America has proclaimed their commitment to fighting elder financial abuse.

Existing California law “requires a county adult protective services agency to report every known or suspected instance of abuse of an elder or dependent adult, as specified, to law enforcement with jurisdiction over the case and to any public agency given responsibility for investigation in that jurisdiction of cases of elder and dependent adult abuse. Existing law also requires a county adult protective services (APS) agency to provide mandated reporters of suspected financial abuse of an elder or dependent adult with instructional materials regarding abuse and neglect of an elder or dependent adult and their obligation to report under these provisions.”

This is a nice proclamation – a nice pronouncement. But, does it work? Is the process effective? How is government performing? One well-respected study found that for every case of elder financial abuse referred to APS there are 44 cases that are not reported.

Our law firm, Hackard Law, regularly litigates elder financial abuse cases. This is civil court enforcement of remedies allowed by law. And, in my experience, we must be handling some of the 44 cases that are not reported. It is rare that our cases come out of APS reporting.

It is one thing for people to report a known or suspected case of elder financial abuse and quite another for the process to work – to lead to criminal prosecution. I draw from anecdotal experience – from experience that is “hashed out in the nitty gritty reality of everyday life.” And, that experience leads me to believe that despite all of the talk about protecting seniors, the process of doing so leaves a lot to be desired.

APS has its limits. Their actions at times seem like a “drive-by” inquiry. They knock on the door, see the senior, look around, basically ask “are you ok?” They’re likely to get a yes answer, particularly if the abuser is present or near.

I can’t think of a case that involved genuine financial abuse where the abused had great clarity on the abuse. The abuser, whether caregiver or family member, may have convinced the elder that everyone but the abuser is out to get the elder. Elders with Alzheimer’s or dementia are particularly vulnerable.

The impact of anosognosia , also called “lack of insight,” is a condition that causes someone to be unaware of their mental health condition and how it affect them. It is common in Alzheimer’s and dementia.

Law enforcement has its limits as well. Law enforcement agencies are also operating in the nitty gritty of everyday life. Part of this nitty-gritty is the recognition that filing a criminal case is one thing and convicting a wrongdoer is another.

“The ‘beyond reasonable doubt’ standard, used by criminal juries in the United States to determine guilt for a crime, also contrasts with probable cause which courts hold requires an unquantified level of proof well above that of probable cause’s 51%.”

So, there are a lot of nice words proclaiming how seniors can and are protected from elder financial abuse. And, civil lawyers, like me are not immune from criticism.

We receive many inquiries from families who have been the victims of financial elder abuse. We take far fewer cases than we’re asked to take. This is a reality of a law practice.

“Law is simultaneously a business and a profession.” Our time, knowledge and geographic reach are limited. We cannot be two places at once. Or, advance expenses that will far exceed our return. If we forget these realities, we won’t be in our profession and business long.

So, when I look at the limitations and the chasm between financial elder abuse pronouncements and performance, I see the need for a better funded law enforcement process. It is not fair to blame law enforcement when the agencies tasked with enforcing financial elder abuse laws are underfunded.

There are a few times when we’ve been told that it is very hard for a law enforcement agency to investigate these crimes when they’re understaffed and underfunded in investigating more violent crimes like murder, rape and robbery. My ultimate conclusion – don’t rely on pronouncements, as I said at the beginning.

Pronouncements are neither process nor performance. While we cannot take every financial elder abuse case presented to us we can take some.